Citation Nr: 1102922
Decision Date: 01/24/11 Archive Date: 02/01/11
DOCKET NO. 06-20 055 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Paul,
Minnesota
THE ISSUES
1. Entitlement to an effective date earlier than March 26, 1993,
for the grant of service connection for posttraumatic stress
disorder.
2. Entitlement to an effective date earlier than March 26, 1993,
for the grant of service connection for headaches.
3. Whether there was clear and unmistakable error in a January
4, 1971, rating decision that denied entitlement to service
connection for headaches.
REPRESENTATION
Appellant represented by: Virginia A. Girard-Brady,
Attorney at Law
ATTORNEY FOR THE BOARD
C. Fleming, Associate Counsel
INTRODUCTION
The Veteran had active duty from January 1968 to September 1970,
active duty for training from August 1985 to August 1986, and
active duty from January 1991 to May 1991.
By an April 1994 rating decision, service connection for
posttraumatic stress disorder and headaches was granted. In July
2002, the Veteran filed a claim for an earlier effective date for
the grant of service connection for headaches. The RO denied the
claim in a July 2003 rating action, and the Veteran filed a
timely notice of disagreement with the denial in August 2003.
The RO, however, took no further action on the claim. In
September 2004, the Board remanded the claim for an earlier
effective date for headaches to the RO for issuance of a
statement of the case pursuant to Manlincon v. West, 12 Vet. App.
238 (1999). In that decision, the Board also remanded the issue
of entitlement to an earlier effective date for the grant of
service connection for posttraumatic stress disorder for the
issuance of a statement of the case pursuant to Manlincon, supra.
In April 2005, the RO issued a statement of the case addressing
the Veteran's claims of entitlement to an effective date earlier
than March 26, 1993, for the grant of service connection for
headaches and posttraumatic stress disorder, and the Veteran
timely perfected an appeal to the Board.
The Board denied the Veteran's claims in a June 2009 decision.
In May 2010, the Veteran's representative and VA's General
Counsel filed a Joint Motion with the United States Court of
Appeals for Veterans Claims (Court) to vacate the Board's
decision and remand the case. The Court granted the motion in
May 2010. The basis for the Joint Motion included the Board's
failure to provide sufficient reasons and bases for its denial of
the Veteran's claims for earlier effective dates for the grant of
service connection for headaches and posttraumatic stress
disorder. Additionally, the Joint Motion directed the Board to
remand the issue of whether there was clear and unmistakable
error in a January 4, 1971, rating decision that had denied
entitlement to service connection for headaches pursuant to
Manlincon, supra.
Because the outcome of the claim of clear and unmistakable error
may have an effect on the assignment of an effective date, the
Board will defer consideration of the question of entitlement to
an earlier effective date for the award of service connection for
headaches until after the statement of the case (SOC) is issued
on the clear and unmistakable error question. See Remand, infra.
FINDINGS OF FACT
1. A claim of entitlement to service connection for a
psychiatric disorder was denied by a RO decision in June 1971;
the Veteran appealed the denial to the Board, which denied the
claim in a November 1971 decision.
2. The Veteran filed a petition to reopen the previously denied
claim for service connection for a psychiatric disorder that was
received by the RO on March 26, 1993.
3. In an April 1994 rating decision, the Veteran was awarded
service connection for posttraumatic stress disorder, which award
was made effective March 26, 1993.
4. In a July 1994 notice of disagreement with the April 1994
rating decision, the Veteran did not disagree or express an
intent to appeal the effective date assigned by the RO for the
grant of service connection for posttraumatic stress disorder.
CONCLUSION OF LAW
An effective date earlier than March 26, 1993, for the grant of
service connection for posttraumatic stress disorder is not
warranted. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.1,
3.151, 3.155, 3.157, 3.400 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The law governing the effective date for an award of service
connection is well established. Generally, the effective date of
an evaluation and award of pension, compensation, or dependency
and indemnity compensation based on an original claim will be the
date of receipt of the claim, or the date entitlement arose,
whichever is later. See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.
(There is an exception for claims filed within a year of
separation from military service; in such a case, the day after
separation may be assigned. Id.) The effective date for a
reopened claim, after a final disallowance, shall be the date of
receipt of the new claim or date entitlement arose, whichever is
later. 38 C.F.R. § 3.400(q)(1)(ii) (2010); see Nelson v.
Principi, 18 Vet. App. 407, 409 (2004); Leonard v. Principi, 17
Vet. App. 447, 451 (2004); Sears v. Principi, 16 Vet. App. 245,
247 (2002), aff'd, 349 F.3d 1326 (Fed. Cir. 2003); see also
Lapier v. Brown, 5 Vet. App. 215 (1993) (an award granted on a
reopened claim may not be made effective prior to the date of
receipt of the reopened claim).
The Board notes that during the pendency of the Veteran's appeal,
VA revised 38 C.F.R. § 3.400(q). See 71 Fed. Reg. 52,455-57
(Sept. 6, 2006). The amended regulation became effective October
6, 2006. As revised, the provisions under the previous version
of 38 C.F.R. § 3.400(q)(2), which concerned service department
records, was removed. The amended regulation reflects the
provisions of former paragraph (q)(1)(ii) as new paragraph
(q)(2). This paragraph relates to receipt of new and material
evidence received during an appeal period or prior to an
appellate decision, or received after a final disallowance, which
does not affect the Veteran's claim. There are no other
substantive changes to 38 C.F.R. § 3.400(q) that have an effect
on the issues under review.
The Veteran was originally denied service connection for a
psychiatric disorder in a June 1971 decision. The Veteran
appealed, and the Board denied the psychiatric disorder claim in
a November 1971 decision. The decision is final based on the
evidence of record. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R.
§ 20.1100 (2010).
The Veteran is seeking an effective date prior to March 26, 1993,
for the award of service connection for posttraumatic stress
disorder (PTSD). Specifically, he contends that the effective
date should be in 1970, from the date on which he initially filed
claims for service connection, which date fell within one year
from his separation from active duty. Alternately, the Veteran
has contended that the effective date should be the day after he
was separated from active duty. As another theory of
entitlement, the Veteran contends that a July 1994 notice of
disagreement with the April 1994 rating decision constituted a
claim for an effective date earlier than the one assigned in the
April 1994 rating decision that initially awarded him service
connection. The Veteran's representative further argued in a
September 2010 statement that the effective date of the award of
service connection for PTSD should be in March 1992, given that
the Veteran was first diagnosed with PTSD at that time.
The claim on which the current appeal is based was received on
March 26, 1993. The petition to reopen was granted, and the
Veteran was awarded service connection for PTSD in an April 1994
rating decision issued by the RO. In that decision, the RO
assigned an effective date to the service connection award of
March 26, 1993, the date the claim was received by VA. In July
1994, the Veteran submitted a notice of disagreement (NOD) with
the April 1994 decision with respect to the ratings assigned, but
he did not appeal the effective date. In that connection, the
Board notes that the Veteran has since contended that the July
1994 NOD constitutes a valid disagreement as to the effective
date assigned. It is argued that a liberal reading of the NOD
should result in a finding that he had expressed disagreement
with the effective date. See Robinson v. Shinseki, 557 F.3d
1355, 1362 (Fed. Cir. 2009) (in direct appeals, all filings must
be read in a "liberal manner" whether or not a veteran is
represented).
Nevertheless, the Board finds that in this case, even a liberal
reading of the record does not give rise to an impression that
the Veteran was seeking an earlier effective date for the grant
of service connection for PTSD. See Szemraj v. Principi, 357
Fed. Cir. 1370 (Fed. Cir. 2004). The nature of the July 1994 NOD
is clear on its face: the Veteran wished to appeal the initial
50 percent rating assigned for PTSD, as evidenced by his
statement that "I am appealing the decision of the rating of 50%
disability for PTSD dated May 25, 1994." Although the Veteran
pointed out in the July 1994 NOD that he had initially been
diagnosed with PTSD in March 1992 and had been "having problems
with work since my return from Vietnam," the Board does not find
that these statements, without some indication that he wished to
challenge the effective date of the grant, amount to a
disagreement with the effective date, as opposed to the rating,
for his PTSD. Rather, the Board finds that these statements
merely serve to bolster his claim that his PTSD was more severely
disabling than recognized by the initial 50 percent disability
rating. He did not indicate that he disagreed with the date of
the award or that he desired to appeal the effective date of the
award.
The version of 38 C.F.R. § 20.201 in effect at the time of the
filing of the NOD in question requires a written communication
from a claimant or representative "expressing dissatisfaction or
disagreement with an adjudicative determination by the agency of
original jurisdiction and a desire to contest the result."
Although noting that special wording is not required, the
regulation nonetheless requires that "the Notice of Disagreement
must be in terms which can be reasonably construed as
disagreement with that determination and a desire for appellate
review." Further, the regulation requires that, if multiple
determinations are made in a single rating decision, "the
specific determinations with which the claimant disagrees must be
identified." Here, the Veteran specifically identified the
initial rating of his service-connected PTSD as a determination
with which he disagreed and wished to appeal. The Veteran did
not suggest or imply a desire to challenge the effective date of
the grant of service connection. As discussed above, the Board
does not find that the July 1994 could be reasonably construed as
a NOD with an effective date. The Veteran's comments about
experiencing problems since service and having been diagnosed in
1992 reflect that he in fact had such problems. That he did
provided a basis for the RO's award of service connection. While
the Veteran's comments may be construed as addressing the nature
of a service connection claim-that a disability experienced by a
claimant becomes evident and thereby provides the basis for a
claim that is filed at some point after manifestation of the
disability, his comments do not address the propriety of when the
award should have been made.
Moreover, it is clear that the Veteran knew how to initiate an
appeal-in fact, he expressly stated that he was "appealing the
decision of the rating. . ." (emphasis added) He did not make
such a statement with regard to the effective date. To infer
that his statement also meant that he was disagreeing with the
effective date is not a reasonable reading of his NOD. Only by
proceeding from credulity-which the regulation does not
require-could one conclude that the Veteran's comments amounted
to an expression of disagreement with the effective date. This
is especially so after he demonstrated a knowledge of how to
initiate an appeal.
The Board further acknowledges that the Veteran's representative,
in a September 2010 statement, appears to argue that because the
Veteran's PTSD was initially diagnosed in March 1992, within a
year of the initial effective date of the grant of service
connection for PTSD-March 26, 1993-the effective date of the
award of service connection for PTSD should be extended back to
the date of diagnosis. In support of this argument, the
Veteran's representative cites to 38 C.F.R. § 3.400(o), which
governs the assignment of effective dates for claims for increase,
not claims for the initial establishment of service connection.
However, this case involves not a question of the effective date
for an increased rating but rather the effective date of a grant
of service connection made pursuant to a claim granted after
being reopened based on the receipt of new and material evidence,
as discussed above. Effective dates for the grant of service
connection in such cases are governed by 38 C.F.R. § 3.400(q).
As discussed above, in a case such as the one here, the effective
date of the award of service connection for a claim that had been
previously denied is the date of receipt of the claim to reopen,
or the date entitlement arose, whichever is later. 38 C.F.R.
§ 3.400(q)(1)(ii); see Nelson, 18 Vet. App. at 409; Leonard v, 17
Vet. App. at 451; Sears, 16 Vet. App. at 247, aff'd, 349 F.3d
1326 (Fed. Cir. 2003); see also Lapier v. Brown, 5 Vet. App. 215
(1993) (an award granted on a reopened claim may not be made
effective prior to the date of receipt of the reopened claim).
In light of the foregoing, it is the Board's conclusion that, as
a matter of law, the Veteran is not entitled to assignment of an
effective date prior to March 26, 1993, for the award of service
connection for PTSD. The Veteran contends that the effective
date for the award of service connection for PTSD should be in
1970, because that is the date of his original claim for service
connection, and alternately because he was separated from active
duty in 1970. The Veteran further claims that his July 1994 NOD
raised a valid challenge to the effective date assigned in the
April 1994 rating decision. As discussed above, the Board finds
that this is not the case. Because the Veteran did not dispute
the effective date when assigned in April 1994, he cannot prevail
on a claim to reopen the question of entitlement to an effective
date earlier than March 26, 1993, or on a "freestanding" claim
for an earlier effective date. Leonard v. Nicholson, 405 F.3d
1333, 1337 (Fed. Cir. 2005); Rudd v. Nicholson, 20 Vet. App. 296,
299 (2006). The governing legal authority is clear and specific,
and VA is bound by it. As such, the claim for an earlier
effective date is denied as a matter of law.
On November 9, 2000, the President signed into the law the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-
475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100,
5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010)). The VA
General Counsel has held that the notice and duty to assist
provisions of the VCAA are inapplicable where, as here,
undisputed facts render a claimant ineligible for the benefit
claimed and further factual development could not lead to an
award. VAOPGCPREC 5-2004 (June 23, 2004); VAOPGCPREC 2-2004
(March 9, 2004).
ORDER
An effective date prior to March 26, 1993, for the grant of
service connection for posttraumatic stress disorder is denied.
REMAND
The United States Court of Appeals for Veterans Claims (Court)
has held that a remand by the Board confers on the appellant, as
a matter of law, a right to compliance with the remand
instructions, and imposes upon VA a concomitant duty to ensure
compliance with the terms of the remand. Stegall v. West, 11
Vet. App. 268, 271 (1998). The Court has indicated that, if the
Board proceeds with final disposition of an appeal, and the
remand orders have not been complied with, the Board itself errs
in failing to ensure compliance. Id.
Regarding the Veteran's claim of clear and unmistakable error in
a January 4, 1971, rating decision that denied entitlement to
service connection for headaches, the Board notes that in a June
2003 informal conference, the Veteran's representative argued
that there was clear and unmistakable error in the January 4,
1971, unappealed rating decision that initially denied the
Veteran's claim for service connection for headaches. When the
Board remanded the effective date question in September 2004, it
ordered that a SOC be issued that also addressed the claim of
clear and unmistakable error. Why this was done is not clear,
but it was done, and the parties to the joint motion agreed that
the Board has failed to ensure compliance with its 2004 remand
instruction.
Because the agency of original jurisdiction (AOJ) has not issued
a statement of the case on this issue, no appeal has been
perfected. Under Manlincon and Stegall, supra, and in order to
comply with the March 2010 Joint Motion, the Board directs the
AOJ to issue a statement of the case concerning the Veteran's
claim of clear and unmistakable error in the January 4, 1971,
rating decision that denied entitlement to service connection for
headaches. (As noted in the introduction, the claim for an
earlier effective date will not be addressed until after the
issuance of the SOC on the claim of error in the 1971 decision.)
In view of the foregoing, the case is REMANDED for the following
action:
The AOJ must issue a statement of the case
(SOC) addressing the question of whether
there was clear and unmistakable error in a
January 4, 1971, rating decision that denied
entitlement to service connection for
headaches. Along with the SOC, the AOJ must
furnish to the Veteran a VA Form 9 (Appeal to
Board of Veterans' Appeals) and afford him
time to perfect an appeal of this issue. The
Veteran is hereby reminded that appellate
consideration of this claim may be obtained
only if a timely appeal is perfected.
Thereafter, the case should be returned to the Board for further
appellate review, if in order. By this remand, the Board
intimates no opinion as to any final outcome warranted. No
action is required of the appellant until he is notified. The
appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This case must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by the
United States Court of Appeals for Veterans Claims for additional
development or other appropriate action must be handled in an
expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp.
2010).
________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs